No. 6165
; IN THE
United States Circuit Court of Appeals For the Ninth Circuit
sity INSURANCE CoMPANY OF NoRTH
ICA (a corporation),
Appellant, VS.
‘a Forrest and Ronatp CLAupE For-
> (a minor), by Belva Forrest, his
rdian ad litem, Appellees.
BRIEF ON BEHALF OF APPELLANT.
Hart tey F. Peart,
Gus L. Baraty, Hunter-Dulin Building, San Francisco,
Attorneys for Appellant.
FULED eer 29%.) FeUL f. ORIEN,
, CLERK
Subject Index
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That Roy Ilooper failed to forward to the appellant the process which was served upon him in the Superior Court of San Mateo County, in which action a default jomement was taken against him..................-> That Roy Hooper failed to render to appellant any co- operation or assistance in the defense of said Superior So 8: EGO eso eee The evidence is insufficient to establish the facts that Roy Hooper was legally operating said automobile with the permission of the named assured, Mrs. Kittredge. . That the evidence is insufficient to establish the fact that Roy Hooper was operating said automobile in the course of his employment as chanffeur for Mrs. Kittredge as alleged in the complaint................
iairwenons given and refused..........-.....s506-
The appellant should have been granted permission to interrogate the jury after the discovery of the fact that the widow had remarried or that a mistrial should have been directed by the court.....................
Exhibit ‘‘C’’ for identification, refused admission in evi- eos kee eco ee chee eee eas
13
21 22
25
Table of Authorities Cited
Pages Code of Civil Procedure, Section 1850.................. 29 Codewot Cina Procedures sections 53 eerie Ze Code of Civil Procedure, Section 1870................... 28 Code of Civil Procedure, Section 1946.................. 28 Bio) (Cronos dienes, IO. 5 oocoeusnscesonbaeooannuoneancce 11 Estate of Emerson, 175 Cal. 724, at pp 727.4...- ee ee 18, 20 Kish v. Calif. State Automobile Assn., 190 Cal. 246...... 22 Lane -v.- Bing, 2028Gal, 57754445. vee re ee eee 22 Metropolitan Cas. Ins. Co. N. Y. v. Colthurst, 36 Fed. (2nd) Doo, afirmed 2elUsS.. 146.406 en 9,12 Murero v. Rhinehart Lumber Company, 85 Cal. App. 385, Chia: |: ) Ga eee rere ne eM hers oo GRD bak oc o wc 22
Royal Indemnity Co. v. Morris, 37 Fed. (2nd) 90, at p. 92 teeny pate one, eer tr ees SiGin 8 Web eS oo © LOM ts
Sinellie v..S. P.iGo. 79 Cale Ween dG ee ale
No. 6165
IN THE
United States Circuit Court of Appeals For the Ninth Circuit
INDEMNITY INSURANCE CoMPANY orf NORTH AMERICA (a corporation),
Appellant, VS.
Betya Forrest and Ronatp Ciaupe For- Rest (a minor), by Belva Forrest, his euardian ad litem,
Appellees.
BRIEF ON BEHALF OF APPELLANT.
FACTS. The Complaint.
This action was commenced by the widow and minor child of Claude E. Forrest, upon an automobile in- surance policy issued by appellant. The complaint alleges, that:
Claude E. Forrest met his death August 8, 1926, when struck by an automobile driven by Roy Hooper, belonging to Mrs. Mary C. Kittredge. At the time of the accident the said policy of insurance was in full foree, (Tr. p. 3.)
9 td
On March 22, 1928, appellees obtained a judgment against said Roy Hooper in the sum of $5324.00, which was not paid; that at the time of said accident said Roy Hooper was operating said automobile in the course of his employment for Mis. Kittredge. (Tr.
p. 5.)
The policy contained, under terms ‘‘Additional In- sured’? what is known as Section ‘‘A’’ (Tr. p. 3), which provides as follows:
‘*It is understood and agreed, unless limited by endorsement attached hereto, that this policy is extended to cover as additional Assured, any per- son, or persons riding in or legally operating any automobile described in the Declarations, and any person * * * legally responsible for the opera- tion thereof * * * provided such use or occu- pation is with the permission of the named As- sured" ee
The Amended Answer.
The appellant admits the existence of the policy but denies that Hooper at the time of the accident was operating the automobile in the course of his employ- ment for Mrs. Kittredge, the named assured. (Tyr. p. 18.)
Appellant denies that Hooper was an insured of appellant (Tx. p. 20); appellant then pleads the sec- tion of its policy requiring it to be notified and to re- ceive all process or pleadings and that the assured would cooperate in the defense of any suit (Tr. p. 21) ; and that Hooper did not forward to appellant, after receipt, any pleading relating to this aceident; that he suffered a default judgment to be entered against
3
him, without notifving the appellant and that he failed to cooperate with the appellant in the defense Gee action. (Tr. pp. 22-23:)
After trial by jury, » verdict for plaintiff was ren- dered in the full amount prayed, namely $5334.00. ar, p. 27.)
The Evidence.
It appears from the evidence that on August 8, 1926, Hooper was employed by Mrs. Kittredge as a chauffeur at her ranch at Saratoga. It was Saturday afternoon, about four thirty P. M. of said day that he asked Mrs. Kittredge to be released for the rest of the day, said he was going to a San Francisco theatre, and asked her permission to take the automobile to San Francisco. He testifies that she granted him this permission. That the nurse gave him a package to deliver to the Fairmont Hotel, but does not know to whom it was to be delivered. or what was its contents, or its size, or whether it was a package for Mrs. Kittredge or for the nurse and that he delivered it to a bell hop at the hotel, and took no receipt therefor, and that Mrs. Kittredge gave him no directions as to Mae delivery of this package. (Tr. pp. 30, 33, 35, 37, 40.) After visiting the theatre, he started to return to Saratoga, and on Sunday morning. August 9, 1926, at about 2:30 o’clock, near Atherton, he had the aecci- dent which caused the death of Mr. Forrest. (Tr. Pp. 32.)
After the accident Hooper tended the injured man and at about 5:30 or 6:30 returned to the home of one Joe Bargas, at Saratoga, who was the gardner for
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Mrs. Kittredge; reported the accident to the gardner, and told him that Mrs. Kittredge did not know that he had taken the automobile. (Tr. p. 78.) Hooper, however, denies having made this statement. (Tv. p. 40.) Hooper remained at the gardener’s house for an hour or two, and then returned to the ranch, which was about three-quarters of a mile away. (Tr. p. 40.)
The following day, an investigator of the appellant insurance company called on Hooper, after his ap- pearance before the Coroner’s jury, at Palo Alto, and took from Hooper a signed statement wherein Hooper traced his actions the evening of the accident. This statement, stgned by Hooper, was offered in evidence, and marked Defendant’s Exhibit ‘“‘A.”’ (Tr. p. 43.) Among other things, in that statement, told the in- vestigator, is found the following: that Hooper ‘‘ went to San Francisco in pursuit of my own purposes, which consisted of business and pleasure.’’ (Tr. p. 43.) On October 18, 1926, the appellees filed suit in the Superior Court of the State of California, in and for the County of San Mateo (Tr. p. 3), against Roy Hooper, Mrs. E. H. Kittredge—thereafter Walter Perry Johnson was substituted as executor of the estate of Mrs. Kittredge (Mrs. Kittredge having died October 20, 1926) (Tr. p. 74), and thereafter a dis- missal against said Walter Perry Johnson, as such ex- ecutor, was ordered on February 11, 1927. (Tr. p. 31.)
Roy Hooper was served with process in that action in the Superior Court, on March 28, 1927, and on March 2, 1928, appellees in that action requested the default of Roy Hooper (Tr. p. 31) and on May 5, 1928, a default judgment was entered in favor of Belva
oy
Forrest and Donald Claude Forrest, a minor, in the Superior Court of San Mateo County, against Roy Tfooper in the sum of $5333.00, which amount Hooper manot pay. (Tr. p. 29.)
Robert W. Forsyth, manager of the Coast Depart- ment of the appellant, testified that he had aecess to all of the files in the office concerning the matter in question; he produced a copy of the policy (the orig- inal havine heen destroved by the executor of Mrs. Kittredge) and then testified that he was never noti- fied by Roy Hooper, that process had been served upon Roy Hooper in the said action pending in the Superior Court of San Mateo County. (Tr. pp. 54-67.)
KE. E. Cresswell, on behalf of the appellant testified that he was Pacifie Coast Claims Manager of the ap- pellant, and was familiar with the matters in question. Subsequent to the service of process upon Rov Hooper, Hooper did not confer with said Cresswell, and never delivered a copy of the said process in said Superior Song action. (Tr. p. 80.)
A. L. Crawford, one of the witnesses for appellee, and one of their attornevs of record testified (Tr. p. 82) that after service of process upon Hooper, he spoke with Mr. Gus L. Baraty, one of the attorneys of record for the appellant in this action, advising him of said service, but the said Mr. Baraty told him that he was not concerned with the matter. In pass- ing we might say that this evidence was given over the objection of appellant.
This action was instituted and maintained by Belva Forrest and her minor child. At the outset of the case,
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it was stipulated that they were the heirs of the de- eedent (Tr. p. 28); it was further stipulated that said Claude E. Forrest was the father of the child named, and the husband of the widow. (Tr. p. 32.)
Belva Forrest was called as a witness in rebuttal by appellant and testified as follows (Tr. p. 81): She first answered to the name of Belva Forrest, and when again asked what her name was at that time, she said Belva Dovan. She then stated that she had just prior to that time told the clerk of the Court that her name was Belva Forrest, and then again stated that her name was Belva Dovan, and spelled the name D-O- V-A-N; that she had been remarried, and was now living with her new husband, whose occupation was that connected with the Shell Oil Company at Mar- tinez, and that she had been married since July 12, 1929. A motion was then made by appellant for per- mission to interrogate the jury, as to whether any of the gentlemen of the jury were aequainted with the lady’s present husband or were in any way connected with the concern with whom he was employed. This motion was denied.
—_—
APPELLANT’S CONTENTIONS.
1. That Roy Hooper failed to forward to the ap- pellant the process which was served upon him in the Superior Court of San Mateo County, in which action a default judgment was taken against him.
2. That Roy Hooper failed to render to appellant any cooperation or assistance in the defense of said Superior Court action.
a
3. That the evidence is insufficient to establish the fact that Roy Hooper was legally operating said auto- mobile with the permission of the named assured, Mrs. Kittredge.
4, That the evidence is insufficient to establish the faet that said Roy ILooper was operating said auto- mobile in the course of his employment as chauffeur by said Mrs. Kittredge, as alleged in the complaint.
5. That instructions requested by appellant should have been given and instructions given by the Court should not have been given.
6. That appellant should have been granted permis- sion to interrogate the jury after the diseovery of the fact that the widow had remarried, ov that a mistrial should have been directed by the Court.
7. A directed verdict in favor of appellant should have been granted.
8. That appellant’s motion for a new trial should have been granted.
9. Defendant’s Exhibit ‘‘C,’’ for identification, should have been admitted in evidenee.
1. THAT ROY HOOPER FAILED TO FORWARD TO THE AP- PELLANT THE PROCESS WHICH WAS SERVED UPON HIM IN THE SUPERIOR COURT OF SAN MATEO COUNTY, IN WHICH ACTION A DEFAULT JUDGMENT WAS TAKEN AGAINST HIM.
The poliey issued by appellant protects, within its terms, the named assured, Mrs. Kittredge, or an addi- tional assured, Roy Hooper (assuming he was operat-
8
img the automobile on her behalf or with her permis- sion). The policy, Defendant’s Exhibit ‘‘B’’ (Tr. pp. 50-63), under the title ‘‘This Agreement is Subject to the Following Conditions’’ (Tr. p. 56), contains para- eraph “D.” (Tr: p,. 59.) Paracraph. “) scomes under the head of ‘‘ Notice and Settlement,’’ and pro- vides as follows:
‘*In the event of aceident the assured shall give prompt written notice thereof to the company or to one of its duly authorized agents and (one) forward to the company forthwith after receipt thereof every process, pleading or other paper of anv kind relating to any and all claims, suits or proceedings. ”’
This paragraph applies to Roy Hooper who, if operating the automobile for the named assured, or with her permission, was an additional assured under the terms of the policy, paragraph ‘‘A’’ thereof. (Tr. p. 58.)
The evidence is without contradiction that Hooper never delivered to this appellant a copy of the sum- mons and complaint in the Superior Court action, but permitted a default judgment to be entered against him. The record shows that on March 28, 1927, Hooper was served with this process and failed to send the same to appellant and that on March 2, 1928, nearly one year after, his default was entered. No attempt was made by Hooper or anyone else to deny or con- tradict the testimony of the officers of the appellant to the effect that this important provision of the policy was not complied with. This point has been
9
directly passed upon by this Court in the recent case of Metropolitan Cas. Ins. Co. N.Y. v. Colthurst, 36 Fed. (2nd) 559; affirmed 281 U.S. 746.
In the cited case, the policy provided (p. 560) : ‘and if suits are brought to enforee such a claim the assured shall immediately forward to the com- pany every summons, or other process, as soon as same shall have been served on hiin.”’
Process was not sent by the assured in the cited case to the insurance company, and default judgment was obtained just as in the case at bar.
In passing on this question, this Court, at page 561, said:
“Appearing, appellant in its answer set up, among other defenses, the facts of Harris’ failure to forward the summons and complaint in the Napa County suit. * * * The importafit con- sideration was that appellant should be advised of the service of process so that it could appear in response thereto, in the assured’s name, and make defense. * * * In that view, admittedly, because of his default in not sooner forwarding the summons and complaint, Hartis in ease he had satisfied the judgment against hin, could not have recovered upon the policy, and the question is whether or not, for like reasons, appellee is sub- ject to the same disabilitv. * * * While not all legally identical with the case before us, in principle and logically, we think these cases lend support to the appellant’s contention that the in- jured person is under the same disability to which the insured would be subject should he pay the
10
judgment and seek indemnity under the policy. * * * The rule, as applied in some of the cases cited, is not without harsh consequences to the in- jured party. By the carelessness or wilful in- action of the msured, who is presumptively an- tagonistic one who has a just claim for dam- ages may be defeated without any fault upon his part. Whether in such ease the standing of the injured party is no better than that of the de- linquent insured we need not here determine.”’
The point, however, was definitely determined by this Court in the recent case of Royal Indemnity Co. v. Morris, 37 Fed. (2nd) SOF at p. 92.
At page 92 of that opinion, this Court said:
“That being true, the question remains whether the appellee (the injured third party) is in any better position. This question was expressly re- served in the Colthurst case (supra), but it now becomes necessary to decide it. Upon considera- tion, we feel constrained to answer it in the negative. Such is the weight of authority as ap- pears from the citations in the Colthurst case. And see, also, Coleman v. New Amsterdam Casu- alty Co., 247 N. Y. 271, 160 N. E. 367, 369. Speak- ing of a statute of New York to which the pro- vision of this policy in favor of the injured person conforms the Comt of Appeals of New York in the Coleman case said: ‘This statute was prompted by a definite mischief. * * * Before its enactment, the insolveney of the assured was equivalent in effect to a release of the surety. The policy was one of indemnity against loss suf- fered by the principal, and loss to him there was
ipl
none if he was unable to pay. The effect of the statute is to give to the injured claimant a cause of action against an insurer for the same relief that would be due to a solvent principal seeking indemnity and reimbursement after the Judginent had been satisfied. The cause of action is no less but also it is no greater. Assured and claimant must abide by the conditions of the contract.’ We ean see no escape from the reasoning of this and the other cases referred to in which a similar conclusion is reached, and it is equally applicable to the Cahformia statute. If the protection af- forded by the statute is inadequate, that is a con- sideration for the Legislature and not for the Courts.”
A material condition of the policy was violated, there can be no question that Hooper forfeited what- ever rights he had under the policy.
Royal Indemnity v. Morris, supra.
The appellant, insurer, cannot be held liable beyond the terms of its insurance contract. 36 Corpus Juris, 1084.
There is some testimony in the record (Tr. p. 82) from A. L. Crawford, one of the attorneys for appel- lees, regarding a conversation had with Mr. Baraty three or four days after process had been served on Hooper. Mr. Crawford stated that process was served, about the 30th of January, 1928 (Tr. p. 82), while the records of the county clerk at San Mateo County show that process was served on Hooper March 28, 1927. (Tr. p. 31.) Mr. Crawford testifies that he told Mr. Baraty, one the attorneys of record
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in this case, in the City Hall in San Francisco, of the service of process on Hooper, and that he was told by Mr. Baraty that he, Baraty was not interested. There is further testimony that before the default, Mr. Craw- ford had a conversation with Mr. Cresswell, Claims Manager of the appellant, who was a witness in this case.
As to the conversation with Mr. Baraty, we contend that the testimony was immaterial and inadmissible, as Mr. Baraty was not an officer of the appellant; the action against the named assured, Mrs. Kittredge, had been dismissed February 11, 1927 (Tr. p. 31), and under the opinion in the case of Jfetropolitan Casualty Insurance Company of New York v. Colthurst, supra, conversation with Attorney Baraty was inadinissible.
As far as the interview with Mr. Cresswell, Claims Adjuster of the appellant, no summons was ever de- livered to him at the conversation, and considering the long delay between the service on Hooper and his de- fault—nearly one year—it would seem to indicate that Mr. Crawford realized that Mr. Hooper had failed to comply with the terms of the policy, and that Mr. Crawford was trying to arrange a settlement. These interviews were denied by Mr. Cresswell.
The fact remains that the provision of the policy of appellant requiring that summons be delivered to it, was never comphed with at all, and under the cited decisions of this Court, appellees are without remedy against appellant.
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2 THAT ROY HOOPER FAILED TO RENDER TO APPELLANT ANY COOPERATION OR ASSISTANCE IN THE DEFENSE OF SAID SUPERIOR COURT ACTION,
The policy of appellant under the title “this agree- ment is subject to the following conditions’’ contained the following provisions in paragraph D. (Tr. p. 60.) “The assured shall at all times render to the Company all cooperation and assistance in his power and when- ever requested shall aid in securing information and evidence and the attendance of witnesses and in prose- cuting appeals.”’
The evidence is without contradiction that Roy Hooper after he was served with process failed to cooperate with this appellant in any manner whatso- ever. Not only did he fail to notify appellant of ser- vice upon him of process but he allowed default judg- ment to be taken against him; he did not advise ap- pellant of his address or whereabouts, nor did he do anything which would tend to assist appellant in the defense of that Supernor Court action, and there is not one word of denial by Hooper or any one else to the testimony of the officials of appellant of this failure to cooperate.
Again, we say a material condition of this poliey was violated and a forfeiture of whatever rights Hooper had thereunder occurred. The question of failure to cooperate has been recently decided hy this Court. in the case of
Royal Indemnity Co. v. Morris, 37 Fed. Re- ports. 2nd 90, decided December 17, 1929, rehearing denied, January 29, 1930, affirmed 281 U.S. 748.
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As a coimeidence, Joseph A. Brown, one of the attorneys for the appellee in the case at bar, was the attorney for the appellee in the cited case.
The policy in the cited case provided ‘‘in the event of claim or suit covered by this policy the insured shall in no manner aid or abet the claimant but shall cooperate fully with the company, the Royal In- demnity Company, in the defense of such claim or suit.”’
The facts of the cited case were that Gomez, the driver who was in the same position as Hooper in the case at bar had failed to deliver the summons to the insurance company and had failed and refused to authorize or permit the insurance company to appear in his behalf in the defense of the action.
This Court in passing on this subject stated ‘‘upon the assumption that Gomez, as we hold, was an ‘in- sured’ it must be conceded, under the facts stipulated, that he violated a material condition of the policy in declining to permit any defense to be made to the action brought against him by the appellee * * *.”’ This Court then determines that Gomez having for- feited his rights under the policy any person claiming through him likewise forfeited his rights.
Hooper in the case at bar under the provisions of the policy was under obligation to assist in whatever manner possible in the defense of said Superior Court action. He could not arbitrarily or unreasonably de- cline to assist in making any fair or legitimate defense, and as said by this Court in the last cited case: He could have at least legitimately challenged the amount
15
of the alleged damages and the proof required. This is made evident by the fact that in the complaint filed in the Superior Court of San Mateo County $10,000.00 was demanded as damages (Tr. p. 3) while in the de- fault judgment obtained im that Superior Court, damages were allowed in the sum of $5324.00 and costs. (Tr. p. 29.) Under this heading we contend that the provision of the policy of appellant requiring co- operation on the part of insured or those benefited by the policy, was not complied with in any particular and that therefore the action against appellant must fall.
3. THE EVIDENCE IS INSUFFICIENT TO ESTABLISH THE FACTS THAT ROY HOOPER WAS LEGALLY OPERATING SAID AUTOMOBILE WITH THE PERMISSION OF THE NAMED ASSURED, MRS. KITTREDGE.
Under this head, at the outset, we desire to point out that the complaint in the case at bar against the appellant is not based upon the proposition, that Hooper was operating this automobile with the per- mission of the named assured, Mrs. Kittredge. See Tr. p. 5, where in Paragraph VIT of the complaint, it is alleged ‘‘that on or about the 8th day of August, 1926, the aforesaid automobile of Mary C. Kittredge * * * was maintained, managed and operated by one Roy Hooper, a chauffeur while in the course of his employment as chauffeur by said Mary C. Kittredge.”’ The only testimony in the record with regard to any permission to use the automobile in question given by Mrs. Kittredge appears in the cross-examination of
16
witness Roy Hooper (Tr. p. 37), where the following testimony was given:
“‘On the 8th day of August, 1926, I had a conver- sation with Mrs. Kittredge at her residence; I asked her permission to go to the City and asked her if I could be released and if she wanted me for anything else; it was m the livingroom of her house on the ground floor; on that Saturday afternoon I asked her if she needed me anymore for the rest of the day and she said ‘No;’ I asked her ‘May I go to the City,’ and she said ‘Yes.’ Previously to that I turned and asked her if it was quite all right to use the Buick, and she said ‘Yes, but be careful.’ ”’
This is the only testimony in the record which wo1ld at all tend to show that Roy Hooper had per- mission to use this automobile at the time of the acci- dent. It was hearsay testimony and at the time it was given Mrs. Kittredge had long since died. This testimony therefore could not be contradicted by her, It was self-serving.
Opposed to that testimony as to permission is the signed statement of Hooper himself given the day after the accident, to the effect that he had gone to San Francisco.
“(On the afternoon of August 7th, this year, I asked permission of my employer, Mrs. Mary C. Kittredge for release from work for the rest of the day. She granted me this. I did not ask her permission to use either of her new automobiles and she did not in- struct me not to use them. Whether or not she knew I had the automobile, I do not know, except that she
Wp
knew early Sunday moiming when the accident was first reported to her. * * * * * cS *
I left my employer's place about 4 P. M. August 7th, 1926, in her Buick car and went to San Francisco in pursuit of my own purposes, which consisted of business and pleasure.”’ (Tr. p. 43.)
There was further testimony of the gardener Bar- gass, to whom Hooper stated that Mrs. Kittredge did not know that he had taken the car. (Tr. p. 78.) There is the further circumstance that at the time of the present trial, there existed an unsatisfied judg- ment against Roy Hooper, in the Superior Court of San Mateo County in the sum of over $5000.00 as the result of this aceident. It is our contention that hearsay evidence of this kind eannot be too care- fully scrutinized by the Court and jury. It has been stated that this tvpe of evidence is the most danger- ous species of evidence that can be admitted in a Court of justice, and the one that is most lable to abuse. No matter how honest the witness may be the exact words in which statements are made are often times transposed and entirely different mean- ings conveyed. The slightest mistake of recollection may totally alter the admission or declaration, and more than this it is most unsatisfactory evidence on account of the facility with which it may be fabri- eated and impossibility, generally of contradicting it.
The Supreme Court of the State of California has oftentimes characterized hearsay testimony purport- ing to come from the lips of a deceased person as the weakest and most unsatisfactory type of evidence,
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and that the ends of justice demand that such testi- mony should be satisfactorily corroborated.
On this subject, the Estate of Emerson, 175 Cal. 724, at p. 727, we find the following language: ‘This unsupported evidence of an oral agree- ment, made in the presence of nobody and evi- denced by no writing, the court accepted to the fullest extent and ruled accordingly. It did this we regret to state in violation of positive law and against the overwhelming weight of the counter- showing.
‘‘This subject matter, as indicated, falls un- der two heads: First, the weight of the evidence itself, assuming its admissibility; and, second, the question of its admissibility. First as to the weight of evidence. Preliminarily it is to be noted that the evidence is self-serving in that it exonerates the witness giving it from a liability to the estate of his deceased brother in the sum of nine thousand dollars with interest, which la- bility, saving for his own testimony, is fixed against him. Second, the evidence is of oral ad- missions against interest by a man whose lips are sealed in death. What, then, does the law say of such evidence (assuming now its admissibil- ity)? The Code of Civil Procedure declares (sec- tion 2061, subdivision 4) that ‘the evidence or oral admissions of a party ought to be received with caution by the jury.’ In Mattingly v. Pen- nie, 105 Cal. 514, (45 Am. St. Rep. 87, 39 Pace. 200), this court in Bank said, ‘No weaker kind of testimony could be produced.’ Again in Bank (Austin v. Wileoxson, 149 Cal. 24, (84 Pac. 417)) this court has said: ‘It is not statmg it too strongly to say that evidence so given under such
19
circumstances must appear to any court to be in its nature the weakest and most unsatisfactory.’ Says Lord Romilly, Master of the Rolls in Couch v. Hooper, 16 Beav. 182: ‘It is always necessary to remember that m these cases, from the nature of the evidence given, it is not subject to any worldly sanction, it being obviously impossible that any witness should be convicted of perjury for speaking of what he remembers to have been said in a conversation with a deceased person.’ Therefore, proceeds the learned judge, he has never experienced any difficulty in rejecting and disregarding such evidence. And, as Vice-Chan- cellor Van Fleet of New Jersey said (Lehigh Coal & Nav. Co. v. Central R. Ri Co., 41 N. J. Eq. 167, (3 Atl. 184)) speaking of such witnesses as this special administrator: ‘It is obvious that their position m the case makes it the duty of the court to examine their testimony with a jeal- ous cave and to scan it with a watchful serutiny. They are masters of the situation and swear with- out fear of contradiction * * * The safe admin- istration of justice demands that i such a case there should be either satisfactory corroborative evidence, or that the evidence of the living party should be so full and convincing as to persuade the court of its entire truth.’ And finally, the text writers show that the courts are all in ac- cord in thus weighing such evidence, and here suffice it to cite 2 Moore on Facts, secs. 877, 150 and 1166; 1 Taylor on Evidence, sec. 648; Wig- more on Evidenee, secs. 578, 2065.”’
The very recent case of Smellie v. S. P. Co., 79 Cal. Dee. 316, decided April 1, 1930, at page 324 of that decision the following language is used:
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‘‘A third inherent weakness to be found in the testimony of Ireland is that it purports to give the statements or declarations of a deceased per- son. Regarding testimony of this character, this Court said: ‘The evidence is of oral admissions against interest by a man whose hps are sealed in death. What, then, does the law say of such evidence (assuming now its admissibility)? The Code of Civil Procedure declares (sec. 2061, subd. 4) that ‘the evidence of oral admissions of a party ought to be received with caution by a jury.’ In Mattingly v. Pennie, 105 Cal. 514, this Court in bank said, ‘No weaker kind of testimony could be produced.’ Again in hank (Austin v. Wileox- son, 149 Cal. 24) this Court has said: ‘It is not stating it too strongly to say that evidence so given under such circumstances must appear to any Court to be in its nature the weakest and most unsatisfactory.’’’ (state of Emerson, 175 Cal. 724, 727.)
Our contention, therefore, under this subdivision is that hearsay evidence of a person long since deceased, coming from Hooper on cross-examination, uncorrob- orated in any way, but in fact positively contradicted, by testimony written and oral, together with a state- ment over the signature of Mrs. Kittredge in which she states positively, that the car was taken without her permission—this letter was refused in evidence (Tr. p. 65), is not sufficient evidence under the author- ities to establish permission to use the automobile in question; and furthermore the pleadings in this ease, as made by the appellees themselves, are not based upon any allegation of permission.
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4. THAT THE EVIDENCE IS INSUFFICIENT TO ESTABLISH THE FACT THAT ROY HOOPER WAS OPERATING SAID AUTOMOMILE IN THE COURSE OF HIS EMPLOYMENT AS CHAUFFEUR FOR MRS. KITTREDGE AS ALLEGED IN THE COMPLAINT.
This is the allegation upon which the appellees base their action. There is not one single word in the entire evidence to the effect that Mrs. Kittredge asked Hooper to deliver a package for her to the Fairmont Hotel. Hooper goes no further than to testify that the nurse gave him a package but whether it was for Mrs. WNittredge or for the nurse or whether it was to be delivered to a friend of Mis. Kittredge or of the nurse he will not state; he does not know the contents of the package, does not know to whom he delivered it, he received no receipt therefor; at one stage in his testimony, on cross-examination when he was asked concerning his leaving the ranch for San Francisco (Tr. p. 39), he describes his trip from the time he left the ranch to the time he arrived at the garage in San Francisco, leaving the machine there while he had his dinner and spent the evening at a theater, then returning to the garage from which place he took the machine to return home and not one single word was said bv him eoneerning the de- livery of a package until that matter was brought to his attention by a question.
This testimony as to the agency theory, as alleged in the complaint, is on a different basis from that of the permission theory set forth in the last subdivision. On the agency theory there is no attempt at all to prove that Hooper came to San Francisco to deliver a package for his employer, Mrs. Kittredge. In con-
po
nection with that failure of proof, consideration and weight must be given to his signed statement hereto- fore mentioned and to his statement made to Bargas concerning the taking of the automobile without the permission of Mrs. Kittredge.
The elements necessary to establish a cause of ac- tion on the grounds of respondeaé superior are abso- lutely lacking.
Lane v. Bing, 202 Cal. 577; Kish v. Calif. State Automobile Assn., 190 Cal. 246.
5. INSTRUCTIONS GIVEN AND REFUSED.
Hight instructions were proposed by defendant. Of this number five were refused. (Tr. pp. 92-97.)
The instructions given by the Court are nine in number, of which numbers 1, 2 and 3 were proposed by defendant, number 7 proposed by plaintiffs, and the balance given by the Court. (Tr. pp. 94, 95 and 96.)
A party to an action is entitled to propose instruc- tions presenting his theory of the case based upon the pleadings and proof. In the ease of Murero v. Rhinehart Lumber Company, 85 Cal. App. 385, at 387, it was said:
‘Just as it was the duty of the court to in- struct the jury giving all proper instructions sup- porting the theory of the plaintiff, it was equally the duty of the court to give to the jury all proper instructions supporting the theory of the defendant.”’
2.
Instruction No. 5 given by the Court of its motion Cir eo), read ws follows:
“Under the provisions of the policy, plaintiff's claim to recovery is, first, that Hooper was driv- ing the Buick car with the permission of the in- sured owned, and seeond, that the conditions of the policy with respect to suit were complied with.”’
We respectfully submit as pointed out above that the plaintiff’s complaint was not based upon the theory of permission but was based upon the theory that Hooper was operating the car in the couse of his employment. It is the contention of appellant that appellees failed to prove employment and that the question as to whether or not Hooper obtained the permission of Mrs. Kittredge was not the basis of the action. This instruction, therefore, should not have been given.
The same argument applies to instruction No. 8 given by the Court of its own motion. (Tr. p. 96.)
The same argument also applies to instruction No. 6 given by the Court of its own motion. (Tr. p. 95.)
Instruction No. 3 proposed by the appellant (Tr. p. 92) we believe, should have been given in view of the character of the evidence produced by the appel- lee. That instruction would have pointed out to the jury the necessity that the plaintiffs’ evidence must be of greater weight, quality and convincing effect than that produced by the defendant and that if the plaintiffs failed to prove the allegations of their com- plaint by a preponderance of the evidence they can-
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not recover. We believe the instruction should have been given under all the circumstances of this case.
Instruction No. 6 proposed by the appellant (Tr. p. 93)—appellant requested that the jury be in- structed that if Hooper was operating the automobile without permission and was not operating it on the business or on behalf of Mrs. Kittredge then the plain- tiffs could not recover.
This instruction was not given in substance any- where. There is not one single instruction given to the jury which advised them that, following the alle- gations of the complaint, the plaintiff would have to prove that at the time of the accident Hooper was driving the automobile on the business of or on be- half of Mrs. Kittredge. This proposed instruction not only set forth the plaintiffs’ theory of the case but also set forth the defendant’s theorv as alleged in the special defense in its amended answer. It should have been given.
Instruction No. 8 proposed by appellant (Tr. p. 93) was based upon the theory of appellant as set forth in its amended answer that Hooper had failed to cooperate and assist in the defense of the action brought against him. Nowhere in the instructions given by the Court is there a single word stated as to the necessity of cooperation and assistance as re- quired by the terms of the policy on the part of Hooper.
Instruction No. 9 given by the Court (Tr. p. 96) covers the proposition of the delivery of process or summons or complaint to the insurance company but
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does not contain a single word as to the necessity of cooperation and assistance im the defense of an ac- tion. We respectfully submit that the jury should have been instructed on this special defense which was pleaded by the appellant and in support of which evidence was introduced, uncontradicted.
Instruction No. 1 proposed by the appellant (Tr. p. 92) was for a directed verdict in favor of the appel- lant.
The correctness of any one of the foregoing conten- tions made by the appellant would require the giv- me ot that directed verdict.
6. THE APPELLANT SHOULD HAVE BEEN GRANTED PER- MISSION TO INTERROGATE THE JURY AFTER THE DISCOVERY OF THE FACT THAT THE WIDOW HAD RE- MARRIED OR THAT A MISTRIAL SHOULD HAVE BEEN DIRECTED BY THE COURT.
From the record it is made to appear that Mrs. Forrest at the outset of the case and throughout its trial until she was called as a witness presented her- self as the widow of Claude E. Forrest. No imtima- tion was given that she had remarried and in fact she still maintained that her name was Belva Forrest when she was sworn as a witness on rebuttal and only after a series of questions did she divulge the fact that she had remarried, gave the name of her present husband and his occupation.
For aught that appears some of the jurymen might know the present husband or they might be connected in some way with the firm in which he is employed.
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We believe that the appellant should have been given an opportunity then and there to interrogate the jury on this question, particularly when it was made to appear that the appellant had kept from every- one in the Court room the fact that she was remar- ried and the name, residence and occupation of her present husband. We do not believe under all of the circumstances that the penalty of a mistrial would be too severe.
Subdivisions 7 and 8 of the appellant’s contentions concern the motion for a new trial and the motion made for a directed verdict. The points involved, we believe, have sufficiently been presented under the foregoing contentions,
9. EXHIBIT ‘‘C’’ FOR IDENTIFICATION, REFUSED ADMISSION IN EVIDENCE.
Appellant offered in evidence a letter addressed to it on September 26, 1926, by Mary C. Kittredge.
Objection was made to its introduction and it was marked defendant’s Exhibit ‘‘C’’ for identification. It was in the following words (Tr. pp. 64 and 65):
‘‘Saratoga, Sept. 26, 1926. Indemnity Insurance Co. of N. America Gentlemen:
Referring to the accident in the early part of August when the unfortunate death of a pedes- trian occurred through being hit by my Buick sedan while being driven by Roy Hooper, the fact is that the car was being used by him that night without my knowledge or permission. As I learned after the accident, he took the car
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seeretly and drove from Saratoga to San Fran- cisco for his own private purposes entirely; and it was while he was on his way back to Saratoga in the early hours of the morning that the acei- dent occurred. Tle was allowed to have Saturday michts free asa rule; and was im the habit of going those evenings to San Jose. For that pur- pose he had general permission to use a Ford runabout; but his express instructions were that he should never use the Buick sedan without first obtaining special permission. On the evening in question he took the ear without permission, nor did I know that he had taken it until 1 was in- formed of the accident on the following day. Neither did I know of any intention on his part to go to San Francisco. Mary Kittredge.”
We contend that the Court erred in refusing to ad- mit this letter in evidence. The record shows that the aceident in question occurred on the 8th day of August, 1926; that the suit was commenced in San Mateo County on the 13th of October, 1926; that Mrs. Kittredge died on the 20th of October, 1926. The letter in question was written September 26, 1926, at a time when no lawsuit was pending against Mrs. Koittredge. It was written by Mrs. Kittredge in the performance of a duty specially required by her un- der the contract of insurance—namely, to report all accidents and give all information available, and it was made against her interest because in this notice to the insurance company, the appellant here, Mrs. Kittredge advised the company that Hooper had no permission to use the automobile in question. The insurance company therefore, under her own admis-
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sion, would not have been obliged to indemnify her or protect her in an action where it was claimed that Hooper was using the car with her permission. The letter, therefore, was one made against her interests.
Certain writings and declarations made by a de- ceased person are admissible.
Section 1946, Code of Civil Procedure, provides:
‘‘Entries of decedents. Evidence in specified eases. The entries and other writings of a dece- dent, made at or near the time of the transaction, and in a position to know the facts stated therein, may be read as prima facie evidence of the facts stated therem, in the following cases:
1. When the entry was made against the in- terest of the person making it.
3. When it was made in the performance of a duty specially enjoined by law.”’
We contend that this letter written by Mys. Kit- tredge was adimissible under section 1 and section 3 of this code section. It was made against her inter- ests and it was made in the performance of a duty imposed by law that is, imposed under the terms of this contract of insurance.
Section 1870, Code of Civil Procedure, provides: ““Macts which may be proved on trial. In con- formity with the preceding provisions, evidence may be given upon a trial of the following facts: 2. The act, declaration, or omission of a party, as evidence against such party ; 7. The act, declaration, o1 omission forming part of a transaction, as explamed in section eighteen hundred and fifty.”
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Section 1850, Code of Civil Procedure, referred to above, reads as follows:
“Declarations which are a part of the transac- tion. Where, also, the declaration, act, or omis- sion forms part of a transaction, which is itself the fact in dispute, or evidence of that fact, such declaration, act, or omission is evidence, as part of the transaction.”
The fact in dispute here is the permission to use this automobile. Section 1853, Code of Civil Procedure, provides: ‘Declaration of decedent evidence against his successors in interest. The declaration, act, or onission of a decedent, having sufficient knowl- edge of the subject, against his pecuniary inter- est, is also admissible as evidence to that extent against his successor in interest.”’
That Mis. Kittredge had knowledge of the fact that no permission was given, there can be no doubt. This knowledge she imparted to her insurance car- rier as required under the provisions of the policy and she did this at a time prior to the institution of any lawsuit.
Were she alive at the time of the trial her testi- mony would have been a complete answer to the faint evidence given by Hooper, and would have been cor- roborated and is corroborated by the signed statement of Hooper made himself the day following the acci- dent to investigator Browne and his statement as to permission made to the gardener Bargas the morning after the accident.
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We respectfully contend under this subdivision that defendant’s exhibit ‘*C’’ for identification should have been admitted in evidence. With that letter before the jury, with the signed statement of Hooper as to his actions in coming to San Francisco as given to investigator Browne and with his statement made to Bargas we contend the testimony of Hooper that this lady now deceased permitted him to use the auto- mobile would be of no avail. That evidence of decla- rations of deceased persons coming from the unsup- ported testimony of a single person, as to a conver- sation between himself and the deceased person has time and again been characterized by the Courts as the weakest of all kinds of evidence. In this action we have the weakest kind of evidence, and if you please, given by deposition, and against this the sworn, positive evidence of two witnesses and two written documents disproving the alleged declaration of a deceased person.
Under the code sections in this state this letter written by Mrs. Kittredge in compliance with the re- quirements of her contract with the insurance com- pany and against her interests should have been ad- mitted in evidence.
Appellant respectfully asks that the judgment en- tered on the verdict be reversed.
Dated, San Francisco, September 29, 1930. Hartitey F, Peart, Gus L. Barary, Attorneys for Appellant.